The goal of "Nonprofit Conversation" is to provide a forum for discussion of nonprofit success and challenges. Bunnie Riedel (host) provides advice, observations and solutions for the nonprofit community. Guest bloggers will be invited to share their ideas and interviews will be conducted with nonprofit executives, board members and other experts in an effort to create a "conversation."

Tuesday, February 1, 2011

Nonprofits deal with employee issues just like any regular business. Have you ever had an "unstable employee?" I have. He lasted about one month. About three weeks into the job he shouted at my operations manager, throw his keys at the wall and slammed his backpack to the floor. At that very moment I realized he had to go. These actions confirmed a sense I was getting even the first week of his work for me. The fact that he was still in his probationary period gave me fairly wide latitude. However, what do you do when an employee has worked for you for years and then they begin to show signs of instability? What is your obligation?

Jon Hyman posted advice on this issue to a question by The Evil HR Lady (don't you love that title?). She raised this issue after the Tucson shootings. Hyman provides some excellent advice on how to handle a very difficult situation. Bunnie

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….
It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.
A few additional practical points to consider:

Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.

The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

5 comments:

Bunnie, thanks so much for always expanding a director's knowledge. Your posts always cover a relevant and often critical topic that some of us haven't tracked down. You are a great resource for things that I didn't even know I needed yet.

Many moons ago when I worked for the American Heart Association, there was a young girl (barely in her 20's) that had some "growing up" to do. She chose to do this by consistenly coming in late to work - if she bothered to come in at all. Then we found whiskey bottles in her trash can! It seemed like upper management thought the problem would just go away. She had been fine for a couple of years but was, sadly, no longer longer a fit for the job. This isn't an extreme case but I wonder now if the higher-ups just didn't know how to correctly deal with the situation so chose to do nothing at all. I appreciate your posting this, Bunnie, so it can let everyone know about their legal options.Betsy BakerYour Grant Authority